Andrew Douglas: Now, the fixed term contract, well, I don’t want to get too mixed up what the new law is, but the new law is worth knowing about. We used to have rolling fixed term contracts that’s in the two years is a maximum term. You can only have one-

Tom Daly: A rolling fixed term contract being one

Andrew Douglas:   Yeah.

Tom Daly: that just-

Andrew Douglas:  Keeps going over and over. So, you can only have one renewal of a fixed term contract. It can’t be for greater than two years. The purpose behind all of that, of course, is to ensure that people get permanent employment and that they have the entitlements that flow with that permanent employment. And if you’re doing somebody for over two years, and one of the exceptions is where the funding is limited to that period of time, then people should be given permanent employment. This case that we talk about, which is the Aboriginal Hostels Limited and is not so much about that. It’s about the word specified term or specified period agreement, which is an exception for unfair dismissal. So, if I say, Tom, you work for a specified term, deduce specific tasks, that gets around. If I terminate you at the end of that period, then you have no entitlement and unfair dismissal regime.

And there has been this constant argument about, well, what happens if it’s not a fixed term contract, but it’s a maximum term contract which allows early termination, you can’t then say it’s for a specified term. So, this case is really important ’cause what this case says is, well, no, it does specify a term, and unless there is a contra intention shown, that there was to be fear, and this what says, you said you were going to employ me after I got the citizenship and they found there was no evidence to support that. But if there was a contra intention, well then, the specified term wouldn’t be exclusively, but in the absence that it will be. So, an interesting and important case for specified term contracts and showing that it just isn’t for fixed term contracts. Ready for the case study, Tom?

Tom Daly: Yep. Ready to go.

Andrew Douglas:  Let’s give it a white bash then.

Tom Daly: So, Tina was not happy. She had been offered a role in the credit team, was an experienced accountant, and had managed debtors and collections for other publicly listed businesses. When Julia accepted her for the role, it seemed perfect. Julia was the CFO of a large family-owned logistics and warehousing business. Julia worked closely with Tina during the first few days, going through her role, position description, and expectations thoroughly. The induction was good, but the financial accounting system was unfamiliar to Tina. Although the work was similar to what she had done before, the system’s visual interface was different. She made some small errors early on, perhaps due to nerves. Julia picked them up. She had great attention to detail. She was kind, went through the process again, and offered encouragement.

At the end of the first week, Julia wrote Tina a polite email thanking her for her hard work, identifying the error that had been made, and reminding her how to avoid them in the future. However, Tina felt the email was unnecessary. Tina suffered from depression and anxiety, something that she had not disclosed when she started the role, and she could feel her anxiety growing. On the following Monday, Julia’s brother, Ted, who was the Operations Manager, approached Tina. He explained a problem with the debtor and suggested what he needed done. His instructions were vague, but Tina, desperate to impress, tried to execute them and failed badly.

The debtor sent furious emails to both her and Ted, and it turned out Ted had been wrong about some of the figures. Julia was copied on the final email. Julia went to see Tina, explained the correct process, as in check the numbers before issuing the letters of demand, clarified the decision making hierarchy, the CEO must sign off, and checked that Tina was okay. Tina began crying. Julia consoled her and said, “Watch out for the boys. They shoot from the hip,” which made Tina smile. At the end of the second week, Julia sent a similar email to Tina as she had after the first week. This time, however, Tina felt hurt and offended. Over the next few weeks, Tina’s performance declined as her anxiety grew.

Eventually, on the advice of her doctor, Tina spoke to Julia, explained her diagnosis, and said that the style of management was affecting her mental health and that she needed more support. Julia responded kindly but pointed out that the errors Tina was making were fundamental and suggested she might not be capable of performing the inherent requirements of her role. Julia asked Tina what she thought the issue was and Tina replied that she was just getting used to the new system. Julia said she would give her an additional month, stop sending the weekly emails, and instead spend time coaching her each week to help improve her skills. However, Tina’s performance continued to deteriorate, and she began to feel micromanaged. Julia continued to find repeated identical errors and became unsure how to proceed. Eventually, Tina resigned and lodged a General Protections claim, alleging that she had been treated adversely due to her medical condition and that she had been bullied after raising a safety complaint.

Andrew Douglas:  All right, so the question is, did Tina have a viable General Protections claim?

Tom Daly: Well, the first thing to get over is, is there a jurisdictional argument that she can’t bring that claim?

Andrew Douglas:  Yeah, because she did resign. And so, the issue was the termination of the behest of the employer, therefore the jurisdiction is a tick. It was of her behest resignation. There was no other choice she could have made.

Tom Daly: Mm.

Andrew Douglas:  There we go. So, I think the jurisdictional argument wins.

Tom Daly: So, what you’re saying there is what we talked about previously

Andrew Douglas:  Yeah.

Tom Daly: in all these cases that just ’cause she’s resigned doesn’t mean it’s at the behest of the employer.

Andrew Douglas:  That’s right. And look, the interesting part

Tom Daly: Yeah.

Andrew Douglas:  is if she had brought the General Protections claim and not resigned, she might have been successful. ‘Cause you can bring a GP claim before termination for which there is no jurisdictional barrier.

Tom Daly: Mm.

Andrew Douglas:  But once you say you’ve been terminated, there is a jurisdictional barrier, and that is, was the termination of the behest of the employer or the employee? So, in this-

Tom Daly: So, what’s the General Protections claim if you haven’t been terminated? Just-

Andrew Douglas:  Oh, you just, yeah. So, you can bring a General Protections claim saying I’ve been treated adversely as a result of workplace. And you can seek injunctive relief, damages, all sorts of things about it. So, you don’t have to resign, just nobody knows you can do it. That’s all.

Tom Daly: Yep. Yeah, yeah.

Andrew Douglas:  Okay. Now, I’ve given the game. We started a new range of claim. Could Tina have lodged a stop-bullying application rather than resigning? Well, the answer’s obviously yes, Tom, but what’s-

Tom Daly: Free country.

Andrew Douglas:  It’s free country. That’s off you go. Do you… But the chance of a success I would’ve thought was zero.

Tom Daly: Yeah, there’s not much repeated behaviour here. It seems like Julia’s generally trying to help her.

Andrew Douglas:  Yeah, I think it’s supportive. There’s a one-off behaviour by Ted. Not so flash, mistakes happen. I don’t think it’s looking good.

Tom Daly: Mm.

Andrew Douglas:  What about workers’ compensation? Well, let me do the workers’ comp ’cause that’s going to be a harder one, isn’t it? So, would there be a workers’ compensation in Victoria? No, this is typical, unusual. There’s no traumatic event that exists in it. No chance of success at all. In New South Wales, some of the behaviours related to could be argued to be falling outside of reasonable management action and a subjective-

Tom Daly: Such as?

Andrew Douglas:  Such as Ted’s behaviour towards her. Yeah, there’s bits and pieces that may get together to make the claim accepted. I still think it’s unlikely anywhere else, but the chance of being accepted in New South Wales is much stronger than in Victoria.

Tom Daly: We’re a bit tougher down here.

Andrew Douglas:  We’re a bit, well, we’ve got rather the law change to make the impossible. So, not to make it harder. All right. Now, what have we got here? Were there any work safety breaches? And if so, by whom? And did Tina breach any of hers?

Tom Daly: Any work safety breaches? It doesn’t really seem like-

Andrew Douglas:  When you look at, was everything done that was reasonably practical? So, did they identify hazards? Yeah, Julia identified after she was told she was anxious and actually tried to accommodate and made adjustments. So, no. Although there were hazards there, the risk were analysed and controls were put in place. This was a person with underlying medical condition, which may or may not have been the basis for failing, but there’s absolutely no breach of safety law. But if the problem was her, in other words, she brought an illness in, and it was damaging her and that was the reason behind it. Although no regulator would litigate the process. She’s clearly in breach of her obligation to exercise reasonable care to prevent harm from herself.

And as employers, we just keep forgetting that that’s a very useful statement to make to someone who’s throwing the blame on you to say, but look, one second, we are making these accommodations, but through your health condition, you are actually placing yourself at risk. We can’t be responsible for that. We can make accommodation adjustments but we can’t change the fact that you are putting yourself at risk and that’s when you move to inherent requirements test. All right, Tina signed a section 41 workers’ comp notice before she started work. One of these exists also in Queensland, but in no other state or jurisdiction, which says you declare that there’s no pre-existing injury or illness that prevents you from undertaking inherent requirements to the job or words to that effect. And if you fail to disclose and you become symptomatic, and seek compensation, you can say to your insurer, you can say, well, it’s not compensable by us. This is not our issue. This is your issue. And therefore, whatever happens, it doesn’t go to premium. So, it’s a quite powerful tool.

Tom Daly: Mm.

Andrew Douglas:  The second tool is to have what’s called a clause in your contract, which says you are to disclose whether you have any preexisting injury or illness that may impact you undertaking the inherent requirements that the job we’re going to get you to a pre-medical, you must disclose all relevant medical or like issues that you have. And if you fail to do that, what would say, in a way where you knew to do so would be a lawful wrong. So, such the statutory declaration. It is a fundamental breach to your contract not to disclose, and therefore, you can summarily terminate an employee once you discover they have lied about it. So, here, do you think either one of those would have any effect, Tom?

Tom Daly: Well, she is said to have a preexisting condition. She wasn’t symptomatic, but perhaps she should have.

Andrew Douglas:  I don’t think… Yeah, I don’t think there’s enough clarity. So, she certainly,

Tom Daly: Yeah.

Andrew Douglas:  if there’s a section 41, she hasn’t done what she’s supposed to do. But it wouldn’t be enough to prevent, if compensation was going to be awarded, it would hit premium. And certainly nowhere close to the There’s nothing requiring a statute declaration or warning that the failure to provide that information would cause the loss of reemployment.

Tom Daly: It’s a lot easier when their job is like has specific requirements.

Andrew Douglas: Yeah, it’s much easier

Tom Daly: Yeah.

Andrew Douglas: and it’s so important. So, this is really a pre-medical case where you send somebody off

Tom Daly: Mm.

Andrew Douglas: with a very good job description. Someone doesn’t describe lower back injuries they’ve had later in their life, and the first day, they lift, they injure their back and unable to work. But look, that’s it for us this week, mate. It’s great. You dropped in on us. That was terrific. I wasn’t expecting you so that was a pleasure.

Tom Daly: Hope for seeing you happy.

Andrew Douglas: Yeah, yeah. And thanks for joining us this week. Please give us a thumbs up. Cheers.